Salem Press

	A good introductory resource, this is one of the more useful titles in Salem's Magill's Choice series, because it pulls together content that is scattered throughout so many other sets.
Booklist

Criminal Justice
Clear, authoritative treatment of all aspects of criminal justice - emphasis on justice in the media.

U.S. Laws, Acts,
and Treaties
Provides the much-needed service of selecting, from literally thousands of U.S. laws, those most likely to come up in classroom discussions.

The Bill of Rights
A comprehensive survey of all aspects of the U.S. Bill of Rights; from its origins to its role in modern American history.

U.S. Legal System
This set includes articles emphasizing basic legal concepts and offer a practical guide to how the federal and state legal systems work.

U.S. Court Cases
The Incorporation Doctrine

The historical process of extending the Bill of Rights of the U.S. Constitution to protect individuals against the states, as well as against the federal government is known as the incorporation doctrine. It is a process that has developed gradually through individual Supreme Court decisions. Incorporation provides federal protection against state violations of most of the rights and guarantees of the Bill of Rights; it changed the federal-state relationship by increasing the power of the federal government

During debate over adoption of the U.S. Constitution, a major complaint was the lack of a bill of rights similar to existing state bills of rights. Continued agitation led supporters of the Constitution to agree that Congress should add a bill of rights during its first session. The First Congress proposed twelve amendments. Ten of the twelve were approved by the states and are known as the Bill of Rights.

The Bill of Rights limited the powers of the federal government, but the federal limitations did not apply to the state governments. The Framers of the federal Bill of Rights thought it was unnecessary to provide protection against state governments, whose constitutions already provided the guarantees stated in the federal Bill of Rights. It was the Fourteenth Amendment (1868), one of the Civil War Amendments, that eventually became the basis for the incorporation of the states into the Bill of Rights.

The rights that were incorporated are in the first eight amendments, which protect the rights and privileges associated with the traditional liberties and freedoms of the people. These rights include freedom of speech, press, petition, and religion as well as the procedural rights guaranteed by the Fifth through Eighth Amendments, including indictment by a grand jury in criminal cases, protection against double jeopardy and self- incrimination, and prohibitions against depriving persons of life, liberty, or property without “due process of law.”

Not until the decade of the 1830’s were cases involving the Bill of Rights appealed to the Supreme Court. Before then, it was feared that Federalist judges would rule unfavorably. In 1833 the Court handed down a decision involving the Bill of Rights in Barron v. Baltimore. The Barron v. Baltimore case arose from economic injuries suffered by wharf owners John Barron and John Craig from street improvements that caused silting around the wharf. In 1822 Barron sued the city of Baltimore, claiming that the city had taken private property for public use without just compensation. Baltimore countered that under state law the city was not liable for incidental damage resulting from needed public improvements and that the compensation clause of the Fifth Amendment of the U.S. Constitution did not apply to the states.

When the case was appealed to the U.S. Supreme Court, it was dismissed for lack of jurisdiction. The Court unanimously stated that the compensation clause of the Fifth Amendment did not apply to the states. Later courts extended the Barron ruling to the rest of the Bill of Rights and prevented the federal government from interfering with state violations of civil rights. The Barron opinion was accepted without question until the Civil War Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) were added to the Constitution between 1865 and 1870.

Civil War Amendments
The Thirteenth and Fifteenth Amendments are concerned with emancipation of the slaves and voting rights, respectively. The Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprivse any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The privileges and immunities clause, the due process clause, and the equal protection clause form the basis of incorporation.

The Supreme Court first gave attention to defining the privileges and immunities clause of the Fourteenth Amendment in the Slaughterhouse Cases in 1873. The cases developed during Reconstruction. The Louisiana legislature passed a law giving the Crescent City Landing and Slaughter House Company a monopoly of the slaughter and sale of livestock in New Orleans and the three surrounding parishes. The legislature based the measure on police powers that permitted states to restrict individual liberties and property rights in order to promote public health, safety, and welfare.

A group of about four hundred small, independent, local butchers obtained an injunction blocking the monopoly. The company in return got injunctions barring the local butchers from harassing the company and barring livestock dealers from building new stockyards. When the Louisiana Supreme Court upheld the law and the injunctions against the butchers and stockyard owners, the butchers appealed to the federal courts, claiming that the company monopoly violated the Thirteenth and Fourteenth Amendments to the U.S. Constitution. The federal circuit court in New Orleans ruled in this first judicial interpretation of the Fourteenth Amendment that the monopoly did violate the rights guaranteed in the Fourteenth Amendment.

On appeal, a sharply divided U.S. Supreme Court in a 5-4 decision upheld the Louisiana law and limited the privileges and immunities of the Fourteenth Amendment. The decision stated that the amendment was intended to protect the rights of the new freedmen and that the rights protected by the amendment were only those deriving from United States, not state, citizenship. Those rights included travel to and from the capital and on the high seas, access to navigable rivers and ports of the United States, habeas corpus, assembly, and the right to petition the government for redress of grievances, and the protection of the government abroad and on the high seas. The decision rejected the interpretation that all rights necessary to freedom were protected by the privileges and immunities clause of the Fourteenth Amendment.

Incorporation
In the post-Civil War period, the Supreme Court gave primary importance to the protection of property rights. In Burlington & Quincy Railroad Co. v. Chicago (1897), the Court incorporated the property rights of the Fifth Amendment, stating that the due process clause of the Fourteenth Amendment protected Fifth Amendment property rights against state actions.

The first steps in incorporating the traditional liberties included in the federal Bill of Rights occurred in the 1920’s; the process increased during the 1930’s. In 1925 the Court held in Gitlow v. New York that “[f]or present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” The Court used the due process clause (rather than the privileges and immunities clause) of the Fourteenth Amendment for incorporation. The Court continued to use the due process clause in the cases that followed.

During the 1930’s the Court began the “modernization” of the Bill of Rights by incorporating most of the guarantees included in the Bill of Rights. Two cases in 1931, Near v. Minnesota and Stromberg v. California, applied the First Amendment rights of freedom of speech and press to the states. In succeeding cases, additional Bill of Rights guarantees were incorporated. The Sixth Amendment right to council in capital cases was added to incorporated rights by Powell v. Alabama in 1932, and freedom of assembly received federal protection in DeJonge v. Oregon in 1937.

Not until Palko v. Connecticut in 1937 did the Court address the relationship between the due process clause and the privileges and immunities clause of the Fourteenth Amendment. In its decision the Court extended the prohibition of double jeopardy (found in the Fifth Amendment) to the states, but it stated that not all the guarantees in the Bill of Rights apply to the states. The procedural rights in the Bill of Rights limit the federal government but not the states.

Fundamental rights, however—freedom of speech and press, the free exercise of religion, peaceable assembly, and benefit of council—are protected from state encroachment by the due process clause of the Fourteenth Amendment. In this case the Court held that the rights in the Bill of Rights are privileges and immunities but that only some of them are so important that they cannot be violated by either the federal government or the states. The importance of each right would be decided on a case-by-case basis.

New attitudes and more liberal judges resulted in greater incorporation during the administration of Franklin D. Roosevelt. A few of the new justices, particularly Hugo Black, argued that the Fourteenth Amendment privileges and immunities clause limited both the federal and state governments. Although this opinion was not accepted by the majority, the Court did incorporate more of the Bill of Rights guarantees using the due process clause.

In the 1950’s federalism was given less consideration and incorporation progressed rapidly. The rights of individuals, especially minorities, received increasing protection. By the end of the 1960’s most of the Bill of Rights applied to the states as well as to the federal government. The federal-state relationship was changed significantly by the doctrine of incorporation. The federal government had attained the power to prevent state violation of the rights and guarantees of the Bill of Rights. One right not incorporated was the Second Amendment right to keep and bear arms. The Court held that the phrase “[a] well regulated Militia, being necessary to the security of a free state” qualifies the right and that regulation under state police powers is constitutional. Other rights not incorporated are the Third Amendment right that prohibits the quartering of troops in private homes, the Fifth Amendment right to a grand jury indictment, the Sixth Amendment right of twelve jurors in a criminal trial, and the Seventh Amendment right of a civil jury. The Court has held that state procedures are adequate to protect the values inherent in those Bill of Rights guarantees.

Robert D. Talbott

Bibliography
Ellen Alderman and Caroline Kennedy, In Our Defense: The Bill of Rights in Action (New York: Avon Books, 1991), is a readable and popular explanation of the extension of the Bill of Rights. Lucius J. Barker and Twiley W. Barker, Jr., Civil Liberties and the Constitution: Cases and Commentaries (4th ed. Englewood Cliffs, N.J.: Prentice-Hall, 1982), discusses issues in civil liberties as determined by court cases and is written for the general reader. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977), presents the extension of the Fourteenth Amendment by the Supreme Court and discusses Hugo Black’s minority opinion in Adamson v. California, the most famous and cogent argument for total incorporation of the Bill of Rights. Milton R. Konvitz, ed., Bill of Rights Reader: Leading Constitutional Cases (5th rev. ed. Ithaca, N.Y.: Cornell University Press, 1973), is a revision of a pioneering work on civil rights as determined by court cases; heavy emphasis is on the 1960’s and early 1970’s, the period of rapid incorporation.